KSHITISH CHANDRA MITRA Vs. DEWAN SHEIKH AND OTHERS

JUDGEMENT

(1.) THE present application under Section 115 of the Code of Civil Procedure has been filed against the order dated 5 -3 -1973 passed by the learned Munsiff by which he rejected the petitioner's prayer to be impleaded as a party defendant in Title Suit No. 32 of 1969.

(2.) THE petitioner's case is as follows. In 1957 the State of Assam acquired the properties of Gauripur Raj Estate under the provisions of the Assam State Acquisition of Zamindaries Act, 1951 and the jote of 400 bighas 1 katha 15 dhurs of land, which was khas land of the Gauripur Raj Estate, vested in the State of Assam with effect from 14 -4 -1957. The petitioner along with some others became tenants under the State of Assam in respect of the areas in their occupation on payment of full rent for their respective holdings. One of the joint settlement holders namely, Rajen Guha, having died the petitioner partitioned his share of 61 bighas 10 kathas 10 dhurs of land from the joint holding by a suit and coupled with his individual holding of 21 bighas 6 kathas 11 dhurs, the petitioner came to hold and possess 82 bighas 17 kathas 1 dhur of land under the State of Assam on payment of rent. Out of these lands, about 13 bighas are under direct possession of the petitioner while the rest are in possession through adhiars and tenants. By Notification No. RRZ. 3/59/360 dated 9 -3 -1959 the Government wrongly had shown acquisition of the old jote of 400 bighas 1 katha 15 dhurs of land as the jote of the heirs of Nekmamud and Saimamud, but that jote was non -existent at the time of issuing the notification dated 9 -3 -1959. In pursuance of that notification, a compensation case was started before the Compensation Officer at Dhubri. As the alleged jote was not in existence and as the said notification and the compensation case adversely affected the petitioner's holding besides causing wrongful loss to the State, the petitioner filed an objection before the Deputy Commissioner, which was registered as Misc. Case No. 40 of 1967 -68. This miscellaneous case was heard by the Additional Deputy Commissioner. Dhubri and by his order dated 16 -8 -1968 he dropped the acquisition proceeding as well as the compensation case. Thereafter the Opposite Parties Nos. 1 to 35 filed Title Suit No. 32 of 1969 in the Court of the Munsiff at Dhubri as plaintiff's against Opposite Parties Nos. 36 to 38 as defendants for a declaration, inter alia, that the proceedings in the said Misc. Case No. 40 of 1967 -68 and the order dated 16 -8 -1968 passed therein were illegal and that the said Notification No. RRZ 3/59/ 360 dated 9 -3 -1959 was valid. It has been stated in the plaint of Title Suit No. 32 of 1969 that the Misc. Case No. 40 of 1967 -68 was started on the petition filed by one Kshitish Chandra Mitra (i.e., the petitioner) and others in November 1967, before the Deputy Commissioner, Goalpara, alleging that the lands in the said Jote were khas lands of the Gauripur Raj Estate and on acquisition of the State, these lands became khas lands of the State of Assam. Opposite Parties Nos. 36 to 38, who are the defendants in that Title Suit, filed a joint written statement wherein it has been specifically stated that the suit was bad for non -joinder of Kshitish Chandra Mitra, that is, the petitioner, and others, as party defendants. In the written statement it has been further stated that the impugned old jote of Nekmamud and Saimamud had been made khas by the Gauripur Rai Estate in 1931 in an auction sale in execution of a decree for arrear rents and thereafter Kshitish Chandra Mitra and others were given fresh settlement as new tenants upon the lands and when the Gauripur Raj Estate was acquired on 14 -4 -1957, these lands became khas lands of the State Government But as the said Notification No. RRZ 3/59/ 360 dated 9 -3 -1959 was wrongly issued in suppression of all these facts, both the acquisition proceedings and the compensation case were dropped. When the petitioner came to know of the institution of Title Suit No. 32 of 1969, he filed a petition before the learned Munsiff at Dhubri for impleading him as a party defendant in the suit. The learned Munsiff rejected the prayer and hence this revision petition.

(3.) MR . D.C. Chakravarty, the learned counsel appearing on behalf of the opposite parties, has submitted that it is not absolutely necessary to implead the present petitioner as party defendant for a decision in the suit and if the petitioner has any right, he may establish the same in a separate suit. This submission is not sound.